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AG nominee unsure about legality of waterboarding

By Laurie Kellman
Associated Press Writer

WASHINGTON — President Bush’s nominee for attorney general told the Senate Judiciary Committee on Tuesday that he does not know whether waterboarding is illegal. He pledged to study the matter and to reverse any Justice Department finding that endorses a practice that violates the law or the Constitution.

“If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique,” Michael Mukasey wrote to the committee’s 10 Democrats.

Elsewhere in the letter,
Mukasey called the interrogation technique that simulates drowning “repugnant.” He said that he did not know if the technique was still being used by U.S. personnel because he is not yet cleared to receive such classified information. Still, he pledged both to stand up to the president if necessary and to seek ways to protect the nation from terrorism. “I would leave office sooner than participate in a violation of law,” he wrote.

It was not immediately clear whether the answer would satisfy members of the panel enough to win Mukasey the 10 votes his nomination needs to be reported to the full Senate with a favorable recommendation. The nomination is not on the agenda for the Judiciary Committee’s business meeting on Thursday, but it can be added at any time up until then.

Earlier in the day, Republicans complained about the delay. Even before they heard Mukasey’s answer, the Senate’s Democratic presidential candidates announced that they would vote against confirmation, in large part because of the lack of a definitive answer on the waterboarding question.

“We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law,” said Sen. Hillary Rodham Clinton, D-N.Y.

Clinton said Mukasey has had plenty of chances to clarify his answers and state his opposition to interrogation techniques. “His failure to do so leaves me no choice but to oppose his nomination,” she said.

Mukasey’s letter was expected to boost support for his confirmation, which in the last week had shifted from nearly unanimous to troubled.

Democrats and a few Republicans said they were concerned about his refusal to answer whether waterboarding, the interrogation technique that simulates drowning, is illegal. A second question focused on a Mukasey comment that appeared to indicate he believes the president in some circumstances is not constrained by the law.

In his four-page letter, Mukasey said he would try to balance constitutionality with “our shared obligation to ensure that our nation has the tools it needs, within the law, to protect the American people.” But he declined to take a stand on waterboarding because, he said, the question is hypothetical.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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